Nyamtimba Manyama @ Bukende & Another vs Republic (Criminal Appeal No. 326 of 2023) [2026] TZCA 351 (26 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA fCORAM: NDIKA. J.A.. FIKIRINI, J.A. And ISMAIL, J.A.) CRIMINAL APPEAL NO. 326 OF 2023 NYAMTIMBA MANYAMA @ BUKENDE .......... . ................... 1 st APPELLANT MNYAMBAYA BONIPHACE . ............................................ — 2 nd APPELLANT VERSUS THE REPUBLIC......................................................................RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Musoma) (Mahimbali. 3.) dated the 13th day of March, 2023 in Criminal Sessions No. X31 of 2022 HIDGMENT OF THE COURT ISP February & 20h March, 2026 ISMAIL, J.A.: The appellants were charged with and convicted of murder by the High Court of Tanzania at Musoma (trial court). They were, in consequence, sentenced to death by hanging. The victim of this horrific incident was Nyamakande Busikimbe. The appeal before us is an effort to protest their innocence. Briefly stated, the 2n d appellant was married to Nyauri Busikimbe whose death was said to be unnatural. The belief was that Nyamakande 1 Busikinde, the deceased, bewitched him. As an act of revenge, the 2n d appellant engaged the 1s t appellant and two other persons to terminate the deceased's life. The sum of TZS. 1,000,000.00 was offered as prize money for the execution of the plan. Having received the sum, the 1s t appellant, allegedly worked hand in glove with his two other colleagues and executed their plan. The incident occurred on 7th December, 2021, at Mayani area within Musoma District in Mara Region. Following the incident, a police swoop was carried out. At some point, PW2, G. 6363 D/CPL Onesmo acted on a tip-off from his informant that a rowdy mob had marauded the 1s t appellant, baying for his blood because he was allegedly involved in a murder incident. He moved swiftly and put him under restraint. On interrogation, he confessed that he killed the deceased at a fee paid by the 2n d appellant. He then recorded a cautioned statement admitted in court as exhibit P5, The recording officer was PW6. In that statement, the 1s t appellant confessed to the killing. It is also on record that, the body of the deceased was subjected to a postmortem examination, carried out by PW3. He testified that the deceased's body had three cut wounds on his head, some bruises all over the body, swollen and smelling. A postmortem examination report (exhibit PI) revealed that the deceased's death was caused by severe 2 haemorrhage. PW5 was an independent witness who witnessed a search into the 1s t deceased's house from which they recovered a panga and an axe. These weapons were seized through a certificate of seizure admitted as exhibit P2. It is discerned from the record that, in the course of investigation, the 1s t appellant made a confession before the Justice of the peace, PW6. The extra-judicial statement containing the 1s t appellant's confession was admitted as exhibit P4. It was alleged that, besides confessing to the killing, the 1s t appellant implicated the 2n d appellant as the financier of the killing. In his defence, the 1s t appellant initially denied involvement in the wrong doing before he wavered and stated that what he testified on, including the denial of wrong doing was a lie. He said that the truth lies in the testimony adduced by PW2, PW4, PW5, PW6 and PW7. The 2n d appellant's defence was composed of a total denial of the allegations levelled against her, maintaining that she was not party to any conspiracy that led to the deceased's death. The trial court was convinced that the case for the prosecution was proven. It went ahead and convicted both appellants and sentenced them to death. The instant appeal is the appellants' attempt to extricate themselves from the blemishes. 3 Hearing of the appeal before us saw Mr, Cosmas Tuthuru, learned counsel, represent both appellants whereas Ms. Monica Hokororo, learned Principal State Attorney, assisted by Mr. Nico Malekela and Happiness Machage, both learned counsels, stood in for the respondent. Mr. Tuthuru, who got us underway began by informing us that he was dropping the memorandum of appeal filed on 25th July, 2023, choosing to predicate his appeal on two grounds raised in the supplementary memorandum of appeal filed on 4th February, 2026. He argued them conjointly. These grounds are coined as follows: 1. That, the trial court erred in convicting the 1st appeliant based on his extra-judicial statement (exhibit P4) and cautioned statement (exhibit P5) whose recording was illegal and its admission was contrary to law. 2. That the case against the appellants was not proved to the required standard. Mr. Tuthuru's onslaught began with exhibit P4, the 1s t appellant's extra-judicial statement. He took an exception to what he considered as non-compliance with the provisions of the Chief justices Guide for Justices of the Peace on recording of confessions of persons or witnesses in the custody of the police. He particularly singled out guideline 6 which 4 requires that a police officer accompanying a confessing suspect be equipped with a letter issued by an Officer in Charge, indicating that the suspect intends to confess. The learned advocate argued that this was a serious flaw that rendered exhibit P4 incurably defective and not worth of any reliance. Mr. Tuthuru pointed yet another anomaly. This is that the said exhibit does not show the name of a police officer who escorted the 1s t appellant and that, even the Justice of the Peace is also silent on that. He contended, yet again, that, at page 134 of the record of appeal, there is an acronym "I.K.S." instead of a declaration by the Justice of the Peace. The absence, he contended, defies the provisions of the Oaths and Statutory Declarations Act, Cap. 34. He urged us to expunge the discrepant exhibit P4. Mr. Tuthuru turned his attention to exhibit P5, the 1s t appellants cautioned statement. On this, his contention is that section 58 (4) of the Criminal procedure Act, Cap. 20 R.E. 2023 (CPA) was flouted in that there are no certificates by the 1s t appellant and the recording officer of the said exhibit. He submitted that what appears as a certificate does not meet the requirements of the cited provision of the law. He buttressed his argument by referring us to the case of Juma Omary v. Republic [2016] TZCA 912. The learned counsel was insistent that the requirements enumerated in section 58 (4) of the CPA are cumulative and that they must be observed in wholesome. On this, he implored us to be guided by our decision in Chamuriho Kirenge & Another v. Republic [2022] TZCA 98. Regarding the certificate of seizure, exhibit P2, the learned counsel argued that there were no special marks on any of such weapons. This, he argued, was confirmed by PW4 and PW5, meaning that these weapons could not be tied to any specific person, in this case, the 1s t appellant. He urged us to maintain the path that the Court took in Boniface Malyogo @ Shetani Hana Huruma v. Republic [2016] TZCA 912. Overall, he contended that, given these glaring anomalies, the case for the prosecution was not proved. He urged us to allow the appeal. Mr. Malekela addressed us on behalf of the respondent. He began by expressing his opposition to the appeal, arguing that he found nothing untoward in the trial court's finding. With regard to extra-judicial statement, Mr. Malekela conceded that no letter was issued ahead of the 1s t appellant's encounter with the Justice of the Peace. He, however, found nothing fatal about it as he felt that the letter was to serve as a measure of willingness to confess. Presence of an accompanying police 1 officer, he argued, served the same purpose. Mr. Malekela argued that even he, the 1s t appellant, acknowledged that he went to the Justice of the Peace. He played down the importance of guideline 6 whose compliance is not mandatory. On whether the statement was read out to the 1s t appellant, Mr. Malekela contended that presence of an acronym "I.K.S", a popular acronym amongst the judicial practitioners, was enough. In any case, he argued, there was no prejudice suffered as a result. Turning on to the cautioned statement, Mr. Malekela contended that recording of the statement complied with the requirements of section 58 (4) (a) to (d) of the CPA. He drew our attention to page 124 of the record of appeal to support his argument. In any case, Mr. Malekela argued, the Court's decision in Yustus Katoma v. Republic, Criminal Appeal No. 242 of 2006 (unreported) vindicates the recording of the said statement. Mr. Malekela argued that, at page 98 of the record of appeal, the 1s t appellant confessed that what he told the court during trial was all lies, arguing that confession of the 1s t appellant during trial was of great effect and that this Court should believe him. He contended that, at page 40, the witness argued that the 1s t appellant confessed orally before PW2 that he killed the deceased. He also confessed that weapons used were 7 recovered from him. In Mr. Malekela's contention, since the 1s t appellant's testimony was nothing but falsehoods, the only credible testimony is that of the prosecution, and that the same should be considered favourably. The learned counsel urged us to find the appeal unmerited and dismiss it. In rejoinder, Mr. Tuthuru was insistent that guideline 6 was an imperative imposition. He contended that, even assuming that the letter was not necessary, absence of the name of the escorting police officer or failure to procure his attendance in court cast a serious doubt. On the flaws in the cautioned statement, Mr. Tuthuru argued that, the holding in Yustus Katoma (supra) does not preclude police officers from complying with the law. He implored us to be guided by our decision in Musa Mustapha Kusa v. Republic, Criminal Appeal No. 51 of 2010 (unreported) in which it was held that the provisions of the law are there not for cosmetic purposes. Having reviewed the record of appeal and the counsel s submissions, the broad question that we distil is whether the case against the appellants was proved. But this aspect will be consequential after addressing the concerns in the first ground of appeal which we will begin with. 8 Mr. Tuthuru has strongly castigated the manner in which exhibit P4, the extra-judicial statement was recorded. First, for not conforming to guideline 6 of the Chief Justice's Guide for Justices of the Peace on recording of confessions of persons or witnesses in the custody of the police and, second, for not certifying it consistent with the provisions of Cap. 34. We find it apposite to start our discussion on the first limb of this aspect by reproducing the substance of the guideline in question. It stipulates as follows: "A prisoner wishing to make a statement may be brought to the office o f a justice under police escort usually bearing a letter from the Officer-in-Charge, Police, to the effect that the accused, who is under arrest in connection with the alleged offence , wishes to make a voluntary statement to a magistrate/justice." [Emphasis added]. From this excerpt, the question we ask ourselves is: is the requirement of an escorting officer to bear a letter from Officer-in-Charge, Police, an imperative requirement whose violation results in the annulment of the extra-judicial statement? Mr. Tuthuru thinks this is an indispensable call. With respect, we are unable to go along with his line of thinking. The catch word in the cited provision is "usually" which 9 means in a way that most often or typically happens. It does not, in any way, connote that it must, as a matter of an obligation, be done. It implies that its doing should occur where circumstances allow that it be done. Thus, where the escorting officer is, for whatever reason, unable to bear the said letter as would usually be the case, then the inability bears no consequence to the confession that is subsequently recorded. We underscored this position in the recent case in Nyamchama Mgendi @ Mokiri vs Republic [2026] TZCA 164 as follows: "On this contention, we agree with the learned State Attorney that bearing an introductory ietter from the relevant police authority is laudable customary practice but not a mandatory requirement This is mainly because guideline concerned is couched that the suspect may be brought to the office o f a justice o f the peace under police escort and usually bearing a letter from the Officer-in-Charge/ Police . "The use o f the phrase "usually bearing a letter" does not connote an imperative or imperious requirem ent " We entertain no doubt that, in assessing compliance with the law, what the Court ought to consider is the substantiality of the compliance and we are firmly convinced that this was achieved in this case. It is in 10 view of the foregoing that we consider Mr. Tuthuru's consternation feeble and we reject it out of hand. Mr. Tuthuru has yet another uneasiness that touches on the same exhibit. His argument is that, instead of putting an acronym "I.K.S.", the recording officer ought to have made a declaration that conforms to Cap. 34. From this contention the question is whether an extra-judicial statement is a statutory declaration in respect of which Cap. 34 is applicable. For ease of reference, it behoves us to reproduce the relevant provision which obligates that the making of a declaration must conform to the said law. This is section 10 which states as follows: "10. Where under any law for the time being in force any person is required or is entitled to make a statutory declaration , the declaration shall be in the form prescribed in the Schedule to this Act: Provided that, where under any written law, a form o f statutory declaration is prescribed for use for the purposes o f that law, such form may be used for that purpose," It is a common ground that, an extra-judicial statement is a form of a written confession whose manner of recording is governed by the Chief Justice's Guideline. It is a statement of inculpation by a suspect. Its form of recording must be consistent with the template in the Guide. ii While such statement is expected to constitute a narration that gives the details of the suspect's culpability, it cannot be said that this is a statutory declaration in the realm stated in section 10 of Cap. 34. It would not, it our considered view, be subjected to the strict conditions that apply in statutory declarations. We are not persuaded that, absence of a declaration in the manner prescribed in the schedule to Cap. 34 or at all, constitutes an infraction. It follows that, the use of acronym "I.K.S." which represents "Imesomwa na Kuonekana iko Sahihi" literally meaning that Read out and found be correct" serves the purpose, knowing that the usage of such acronym and a few others is a practice which is common amongst judicial officers and known to many, including private legal practitioners. We are fortified in our view that this complaint is equally unmerited and we dismiss it. Next for our determination is legality or otherwise of the 1s t appellant's cautioned statement, exhibit P5. Ttie recording of the statement has been rebuked for not being compliant with the provisions of section 58 (4) of the CPA. As we tackle this matter, we wish to subscribe to the argument by Mr. Tuthuru to the effect that, the recording of a suspect's cautioned 12 statement must be consistent with what the law requires. These requirements are varied and stated in several provisions of the CPA. We are also in alignment with the decisions cited to us by Mr. Tuthuru, including Chamuriho Kirenge & Another (supra); and Mbuzi Lushona & Another v. Republic [2024] TZCA 964. We are also aware of the fate that awaits a statement whose preparation is wayward. We have scrupulously reviewed exhibit P5, particularly the part that carries certifications by the 1s t appellant and the recording officer. What we discern is that the 1s t appellant certified that what is contained in the statement is what he narrated and, having been read out to him, he found it to be correct. The certifying officer also certified that he recorded the statement consistent with what the law dictates. Both of them appended their thumbprint and signature, respectively. Mr. Tuthuru feels that the certifications ought to have been more explicit than what appears in the statement. With respect, we feel that the demand is unjustified and a step out of the ordinary. We are of the view that what was contained in the certifications conveyed what was enough to make the 1s t appellant get the import of what was done and he was satisfied with it. We adopt the stance that this Court has maintained in cases similar to the instant matter. Thus, in Nyamchama Mgendi @ Mokiri v. Republic [2026] TZCA 164, the Court clarified as follows: "Mr. Tuthuru asserted that the certificate should have confirmed that the statement was read aloud, deemed accurate, and that the suspect had no corrections, alterations, or additions to make. His formulation appears to be ideal; yet we believe that the contested certification conveys the same meaning. The most significant aspect for us is that the appellant seemed content with the statement's veracity. In the premises, we deem it largely compliant with the law." We, in consequence, find the complaint by Mr. Tuthuru misconceived. We dismiss it. The second ground invites us to decide if the case against the appellants was proved beyond reasonable doubts. It is customary that, in order to hold an accused person guilty of murder, the prosecution must prove existence of four key ingredients. These are: one, there is a death of a person; two, the death was caused by an unlawful act or omission, three, the accused is the person who did the unlawful act or omission; and four, the killing was done with malice aforethought - see: Magimbi Mzini v. Republic [2025] TZCA 1122. 14 In the case of the 2n d appellant, the prosecution's case heavily leaned on the confessional testimony of the 1s t appellant who owned up to the murder incident at the behest of the 2n d appellant who allegedly wanted him dead. This is contained in exhibit P4 (pages 116 and 117) and exhibit P5 (page 122) both of which revealed how the plan was allegedly hatched, executed and the players involved. The question is whether this testimony is sufficient to constitute the basis of conviction against the 2n d appellant. It is settled law that testimony of a co-accused may, as a general rule, be the basis for grounding a conviction against a co-accused. This is the stipulation of section 33 (1) of the Evidence Act, Cap. 6 R.E. 2023. It states as hereunder; "33- (1) When two or more persons are being tried jointly for the same offence or for different offences arising out o f the same transaction , and a confession o f the offence or offences charged made by one o f those persons affecting him self and some other o f those persons is proved, the court may take that confession into consideration against that other person [Emphasis added] Nonetheless, reliance on the co-accused testimonial account to incriminate the co-accused is not without any strings attached. These 15 strings are in the form of the statutory requirement, enshrined in sub section (2) of the cited law, which states as follows: "Notwithstanding the provision o f subsection (1), a conviction o fan accusedperson shaii not be based soieiy on a confession by a co-accused." The clear import of the excerpt is that, there must be another set of evidence which corroborates the co-accused's testimony, and we may add that, such corroborating evidence may be circumstantial and, in some cases, be inferred from the conduct of or words spoken by the co-accused against which the said testimony is intended to incriminate. This means, therefore, that, it is profoundly unsafe for a court to rely on an uncorroborated testimony of the co-accused. Doing so has the potential of perpetrating an injustice to the implicated co-accused, and the position that the Court has consistently taken is that such accused should be left to benefit from the lapses. Thus, in Pascal Kitigwa v. Republic [1994] T.L.R. 65, this Court made the following resounding observation: "However, as correctly observed by the trial magistrate and the learned judge, even though the iaw is such that a conviction based on uncorroborated evidence o f an accomplice is not illegal still as a matter o fpractice, the then Court o f Appeal for Eastern Africa and this Court have 16 persistently held that it is unsafe to uphold a conviction based on uncorroborated evidence o f a co-accused, In this case, the trial magistrate as well as the learned judge on first appeal apart from warning themselves o f the danger o f convicting on uncorroborated evidence o f the second accused (DW2), went further to look for other evidence implicating the appellant It is common ground that corroborative evidence may wed be circumstantial or may be forthcoming from the conduct or words o f the accused." We have unfleetingly reviewed the prosecution's testimony and what comes out is that, nothing, in the form of direct evidence, circumstantial or conduct, adds credence to what the 1s t appellant testified against the 2n d appellant. Not even utterances by the 2n d appellant are available to support the confessional account of the 1s t appellant. This leaves the 1s t appellant's testimony hanging and 'lonely'. We do not consider that, that alone, could safely constitute the basis of grounding a conviction against the 2n dappellant. We, in that respect, find the learned trial Judge's decision to hold the 2n d appellant culpable a little imperfectious and, needless to say, hurtful to the 2n d appellant. In consequence, we find that the 2n d appellant's conviction and eventual sentence were not merited. Accordingly, we quash and set aside the 17 conviction and sentence against her and order that she be immediately released from prison, unless held for other lawful reasons. Turning on to the 1s t appellant, our conviction is that the testimony adduced in court did enough to establish that: (i) Nyamakande Busikimbe died, (ii) his death was unnatural, caused by an unlawful act, (iii) the 1s t appellant, along with other assailants were the perpetrators of the unlawful act that caused the deceased's demise, and (iv) the death was pre-meditated, inferring malice aforethought. This testimony is gathered from exhibits P4 and P5 both of which are detailed confessional statements that establish involvement, motive and the manner in which such incident was carried out. We are alive and fully subscribe to the trite position, as enunciated in Paulo Maduka & 4 Others v. Republic [2009] TZCA 159, to the effect that the very best of witnesses in a criminal trial is an accused person who confesses his guilt. Noteworthy, the 1s t appellant's testimony is corroborated by the testimony of PW2, PW3 and exhibit P2 which revealed the cause of death and the pattern of attacks carried out by the assailants. The totality of this brings us to the conclusion that the case against the 1s t appellant was proved to the hilt. 18 In the upshot, save for the 2n d appellant whose conviction and sentence have just been adjudged unmerited, we find the appeal by the 1s t appellant lacking in merit and we dismiss it. DATED at DODOMA this 26th day of March, 2026. G. A. M. NDIKA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Judgment delivered this 26th day of March, 2026 in presence 1s t and 2n d appellants in persons-unrepresented, Ms. Martha Mbosoli, learned State Attorney for the Respondent/Republic via virtual Court from Musoma, and Mr. Magesa Fabiane Mgeta, Court Clerk, is hereby certified as a true copy of the original. 19